A petition seeking an order quashing the decision of the Workers’ Compensation Appeal Tribunal (the “WCAT”) and a declaration that the petitioner was not a “worker” was dismissed by the Court as the Court found that the WCAT did not act beyond its jurisdiction and its decision was not patently unreasonable

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Validity and application of policies – Worker – definition – Statutory provisions – Jurisdiction – Judicial review – Standard of review – Patent unreasonableness

Harris v. 149925 Canada Ltd., [2004] B.C.J. No. 2542, British Columbia Supreme Court, December 6, 2004, Boyd J.

The petitioner sought an order quashing the decision of the Workers Compensation Appeal Tribunal (“WCAT”) and a declaration that the petitioner was not a “worker” within the meaning of the Workers Compensation Act.

The petitioner was employed by C. Ltd. as a general manager of sales and marketing. The company was situated in Ontario and was in the business of manufacturing electrical and plumbing products which were sold through distributors. On June 22, 2000, the petitioner was in British Columbia on a business trip. He took business trips to British Columbia approximately once per quarter for one week at a time. On June 22, 2000 the petitioner slipped and fell at the Westminster Quay. The petitioner declined to pursue a claim with the Ontario Workplace Safety and Insurance Board. Instead he commenced an action against all of the respondents (excluding the WCAT) in the British Columbia Supreme Court for damages for injuries arising from the accident. By way of defence, the respondents pleaded the statutory bar found in section 10 of the Act. The respondents applied under section 257 of the Act for determination by the Board, amongst other things, that the petitioner was a “worker” within the meaning of the Act and that the petitioner’s injuries “arose out of and in the course of employment”. The WCAT found that policy no. 20:30:40 of the Assessment Policy Manual was determinative of the issue and that the petitioner was indeed a “worker” within the meaning of the Act. The Policy outlined criteria to determine if a firm was only carrying on business in B.C. “temporarily.”

The Court found that, applying the pragmatic and functional approach, the standard of review of patent unreasonableness would apply, save for the situation where the WCAT exceeded its jurisdiction.

The Court held that the WCAT did not err or exceed its jurisdiction in applying policy 20:30:40. The Court held that the lengthy history of the policy was rooted in the evolution of the definition of “worker” as defined by the legislation and interpreted by the Courts. The Court noted that by virtue of section 250(2) of the Act, the WCAT must apply the policy unless it finds the policy patently unreasonable. If a policy is found to be patently unreasonable, then it must be referred to the chair of the WCAT for binding determination. The chair must then refer a patently unreasonable policy to the WCB Board of Directors for reconsideration. The Court noted that at no point had the petitioner ever challenged the lawfulness of policy no. 20:30:40 under the Act. In all the circumstance, the Court was satisfied that the WCAT’s decision to apply the policy and to treat the policy as binding under section 250 of the Act was not patently unreasonable.

With respect to the application of the policy, the Court held that the WCAT’s determination that the petitioner’s presence in the province constituted both the employer’s presence and the worker’s presence in British Columbia was not patently unreasonable. It was open to the WCAT to find that an employer could satisfy the requirements of the policy through the presence or intended presence of its worker for work in the province. In this case, the WCAT considered both the historical conduct of the petitioner pertaining to his working trips to British Columbia, as well as his history during the year 2000 which was the year in which the injury occurred. The WCAT concluded that the petitioner’s employer acted through the petitioner and that accordingly it failed to satisfy the criteria for exemption under the Act. On this evidence, it was open to the WCAT to find that the petitioner intended to work a total of 20 working days in the province. At a minimum therefore clause B of the policy was satisfied and supported the conclusion that the petitioner was a worker within the meaning of the Act.

The Court was therefore satisfied that the WCAT was within its jurisdiction in finding that the petitioner did work in the province. The decision was not patently unreasonable and the petition was dismissed.

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